Umesh Chandra Gupta vs Sri Surya Prakash Gupta
2013 Latest Caselaw 5185 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 

 
Case :- WRIT - A No. - 64164 of 2009
 

 
Petitioner :- Umesh Chandra Gupta
 
Respondent :- Sri Surya Prakash Gupta
 
Counsel for Petitioner :- Ashok Pandey,Kshitij Shailendra
 
Counsel for Respondent :- U.N. Pandey,H.N.Singh,S.C.,Shiv Ram Dubey,U.N. Upadhayay
 
						**********
 

 

 
Hon'ble Rajes Kumar,J.

This is a writ petition by the landlord, challenging the order of the Additional District Judge, Court No.6, Allahabad, dated 2nd September, 2009, passed in Civil Revision No. 1549 of 1998, whereby the revision filed by the respondents-tenant has been allowed by setting aside the order of the Judge, Small Causes Court dated 18th November, 1998, passed in SCC Suit No. 31 of 1986.

The brief facts, giving rise to the present petition, are that the petitioner filed SCC Suit No. 31 of 1986 against Jagannath Halwai and his wife Devkali Gupta for eviction on the ground that the defendants have made a material alteration in the shop in dispute without the consent and permission of the landlord, which diminished value of the property. The allegation was that the defendants have covered the Chabutra in front of the shop and extended the shop by putting a shutter on the extended portion of the shop and further also constructed racks and almirahs without the consent and permission of the landlord. During the pendency of the suit, both, Jagannath Halwai and Smt. Devkali Gupta died and they were substituted by Surya Prakash Gupta and Anjali Gupta. The suit was decreed ex parte vide an order dated 8th August, 1986. The restoration application filed by the defendants has been rejected, which has been allowed in the revision and the suit has been restored. The defendants filed the written statement. Judge, Small Causes Court decreed the suit vide an order dated 18th November, 1998 against which the defendants filed Civil Revision No. 1549 of 1998, which has been allowed by the Additional District Judge, Court No.6, Allahabad vide order dated 2nd September, 2009, which is being challenged by means of the present petition.

Heard Sir Ksitij Shailendra, learned counsel for the petitioner and Sri Sharad Upadhyay, holding brief of Sri H.N. Singh, learned counsel for the petitioner.

Learned counsel for the petitioner submitted that the respondent has made a material alteration in the shop in dispute by covering the Chabutara infront of the shop in dispute and extended the shop and also put a shutter infront of the extended portion of the shop without the consent and permission of the land-lord, which has diminished value of the property in the sense that the action of the defendants was unauthorised and contrary to the Building Bye-laws and the same could be demolished by the Nagar Nigam or the Development Authority, which may cause harm to the entire building. The Judge, Small Causes Court, on consideration of the entire facts, has held that the defendants have made a material alteration without the permission and consent of the landlord, which, in fact, has diminished value of the property and as such the case of the plaintiff-petitioner is covered under Section 20(2)(c) of Act No. 13 of 1972. He further submitted that the revisional court has illegally held that since in the plaint, it has not been pleaded that because of the unauthorised construction/material alteration, the value of the property has been diminished, the issue no.1 framed in this regard should not have been framed and the statement of PW-1 in this regard is not admissible. He further submitted that the revisional court has erred in holding that the alleged construction does not fall within the purview of material alteration and as such the construction would not have diminished value of the property. It has also been submitted that the revisional court has no jurisdiction to re-assess or re-appraise the evidence while exercising revisional power. The reliance is being placed on the decisions of this Court in the case of Om Prakash and others v. Iind Additional District Judge, Sahrarnpur and others, reported in 2000(2) ARC, page 739, Court in Writ Petition No. 48034 of 2003, Mukundi Lal v. Om Prakash and others, decided on 4th July, 2013, Writ Petition No. 63148 of 2012, Umesh Kumarv. Arun Kumar and others, decided on 5th December, 2012, Krishna Kumar Gupta v. Subash Chandra Surana, reported in 2013 (5) ADJ 436 in support of the submissions made.

Learned counsel for the respondent, while relying upon the order passed by the revisional court, has submitted that there are four shops in series, which have been let out to Lallu, Madan, Satish and the respondent-tenant, respectively. The shop let out to the respondent-tenant is third in number from one side and second from the other side. The tenants of other three shops, namely, Lallu, Madan and Satish have also extended their shops by covering the Chabutara and also constructed wall on the extended portion of the shop and put shutter thereon to which neither any objection has been raised by the landlord nor any suit for their eviction has been filed, therefore, to match and make symmetry with other shops, the respondent-tenant has also extended his shop by covering the Chabutra and put the shutter on the extended portion of the shop. Such minor alteration does not amount to material alteration and it does not diminish the value of the property. Reliance is being placed on the decisions of the Apex Court in the case of G. Arunachalam (Dead) Through Lrs. And another v. Thondarperienambi and another, reported in (1992) 1 SCC 723 and in the case of Waryam Singh v. Baldev Singh, reported in (2003) 1 SCC 59.

I have considered rival submissions and perused the record.

I do not agree with the view of the revisional court that if the specific plea has not been taken in the plaint that due to the unauthorised construction raised by the tenant, the value of the property has been diminished, the Judge, Small Causes Court was not justified in framing the issue in this regard and as such the statement of PW-1 recorded in this regard is not admissible as an evidence. Order XX, Rule 4 of the CPC only requires that judgment of a court of Judge, Small Causes Court shall contain the points for determination and decision thereon. The issue has been decided after giving fullest opportunity to the parties and no objection with regard to framing of the said issue has been raised and, therefore, the objection cannot be entertained at this stage.

Let us examine the decisions cited by the learned counsel for the petitioner.

In the case of Satish Chandra Agarwal v. Ist A.D.J., Shahjahanpur & others, 2005 (59) ALR 838, in the backdrop of the facts that in place of 'kachcha' partition wall, a 'pakka' wall was raised in place of wooden roof, lintel roof was constructed, the learned Single Judge of this Court has held that converting a 'kachcha' wall into 'pakka' wall and converting the wooden roof into lintel roof has not diminished the value and utility and gave it a better look.

In the case of Gurbachan Singh & Anr. Vs. Shivalak Rubber Industries & Ors., (1996) 2 SCC 626, it was held that finding of the trial court in respect of the construction or structural alteration would be finding of fact, but the question whether alleged additional alteration has materially impaired the value and/or utility of the premises in dispute, is a mixed question of law of fact, which requires to be determined in the light of the facts and circumstances of each case.

In the case of Mukundi Lal v. Om Prakash (supra), the tenant made alteration by removing the wall partitioning the shop and the gallery and the door, amalgamating the area of the gallery in the shop without any permission from the landlord. The court below has held that the tenant has made a material alteration, which diminished value of the property. This Court, in the writ petition, has held that the existing partition wall with the door affixed therein has been demolished by the petitioner-tenant, which was resulted in diminishing the value of the building and the concurrent finding recorded by the two courts below has been upheld.

In the case of Umesh Kumar v. Arun Kumar, in Writ Petition No. 63148 of 2012, decided on 5.12.2012, the facts of the case were that on the northern side of the shop in dispute, there was an adjacent vacant land, having no passage for egress and ingress, being surrounded by other shops and constructions, the tenant after opening the door in the northern wall installed a window and removed western wall to install a gate and thus made an entry to the said open land, constructed one room on the open land. The tenant also laid a low rise roof below the original roof in the disputed shop and thereby disfigured and structurally altered a 45 years old construction, resulting in diminishing and altering its value. On these facts, the learned Single Judge of this Court has held that the tenant has made a material alteration and diminished value of the property in dispute.

This Court in Dr. Jai Gopal Gupta Vs. Bodh Mal, 1969 ALJ 477 held that in a suit filed for eviction on the ground of "material alteration", the Court has to first record a finding about the actual construction made by tenant and such finding will be a finding of fact. Having done so, the court thereafter would have to form an opinion whether such constructions have "materially" altered the accommodation or is likely to cause substantial damage to its value. That was the requirement under statute, as it was up for consideration in Dr. Jai Gopal Gupta (supra) but the language of Section 20(2)(c) has removed the word "material alteration" and it is now differently worded. Now the term is "construction" or "structural alteration". The two terms namely construction or structural alteration are much lighter requirement than the term material alteration. Now every construction or structural alteration, whether it can be said to be "material" or not would attract the mischief under Section 20(2)(c) of Act, 1972 provided it further satisfy the their requirement namely diminish the value of the property or utility or to disfigure it.

In Vipin Kumar Vs. Roshan Lal Anand and others, 1993(2) SCC 614 the Court said that impairment of value or utility of building is to be seen from the point of view of landlord and not that of tenant.

The word "value" means intrinsic worth of a thing. In other words, utility of an object satisfying, directly or indirectly, the needs or desires of a person. It can thus be said that to attract Section 20(2)(c) it has to be established that the tenant has committed such acts of construction or structural alteration as are likely to diminish the quality, strength or value of building or rented land to such an extent that intrinsic worth or fitness of the building or rented land has considerably affected its use for some desirable practical purpose. The decrease or deterioration, in other words, the impairment of the worth and usefulness or the value and utility of the building or rented land has to be judged and determined from the point of view of landlord and not of tenant or any one else. This aspect has also been reiterated by Apex Court in Gurbachan Singh (supra) in para 12 of the judgement. In Gurbachan Singh (supra) also the tenant had removed full size door of one shop and merged the shop into open part of verandah. All these activities were held to be a constructional alteration impairing material value and utility of building. The Court observed:

"14. . . . . . then the rest of the construction, additions and alterations of the 5 shops and the verandah in front of the said shops of a permanent nature, will certainly amount to acts as have or likely to have impaired materially the value or utility of the building/premises let out to them. . . . . . . In the present case the removal of the roof of the shops partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing the doors and opening new doors and windows and converting the premises altogether, giving totally a new and a different shape and complexion by such alteration would certainly be regarded as one involving material impairment of the premises affecting its Fitness for use for desirable practical purpose and intrinsic worth of the demised premises from the point of view of the appellant-landlords within the meaning of Section 13(2) (iii) of the Act."

In Ram Chandra v. Musai and another, 1982, All. L.J. 1295, Hon'ble N.N. Sharma, J. considered the question, whether the nature of alteration was a "material alteration" or not but this Court has no hesitation in observing that in Section 20(2)(c) the landlord is not required to prove "material alteration" but he has to show a "structural alteration" made, having the effect of disfigurement or diminishing the value or utility of rented building. The word "material alteration" does not find place in Section 20(2)(c) and, therefore, various authorities relied in Ram Chandra (supra), in my view, also would have no application to the case in hand, governed by Section 20(2)(c) of Act, 1972.

In Yashpal Gupta and others v. Third Addl. District Judge, Moradabad an others, 1986 ARC 476, the Trial Court took the view that mere opening of a door in the wall may result in diminishing the value and utility of shop but the Revisional Court took a different view. This Court confirmed Revisional Court's view instead of Trial Court. The question, whether opening of door in a shop would diminish the value or utility of shop or not, has to be looked into from the facts and circumstances of each and individual case and it is for this reason, i.e., in para 6 of the judgment in Yashpal Gupta (supra), in the context of that particular case, the Court said, that, "possibly" it shall not diminish its value and utility and upheld the view taken by Revisional Court. The aforesaid decision cannot be said to lay down a rule of thumb that in no case it shall result in diminution of disfigurement of the value of shop. Moreover, the construction/structural alternation in the case in hand is not a mere opening of gate and window but both two things have been done in two different walls and, therefore, the shop has been substantially altered also. When a construction is demolished, may be partially, it is for tenant to prove that it is not resulted in disfigurement or diminishing the value and utility of building.

In Ashok Kumar and others Vs. Additional District Judge, Bareilly and others, 1993(1) ARC 181, this Court in para 11 has observed:

"11. These are the cases where the partition wall was raised. It was a construction and the question was whether such constructions amounted to diminishing its value or utility or it disfigured the building. They were not the cases where certain constructions were demolished. In a case where the constructions are demolished and there is no justificable reason to demolish any portion of the building, it is for the tenant to establish that it has not diminished or likely to diminish the value, utility of the building or disfigured it. The case where the building or any portion of it is in such a dilapidated condition that the tenant has to remove the same, the position may be different but to demolish any portion of the building for his own purposes shall reduce the utility and the value of property. The value of the shop to the extent of value of the wall removed by the tenant is diminished. Further in case there are two shops and intervening wall is removed, the existence of two shops is reduced into one shop and their utility as two shops are affected."

The Court relied on an earlier decision of Hon'ble N.D. Ojha, J. (as His Lordship then was) in Nanak Chand Vs. Om Prakash and others, 1983(2) ARC 135 where the partition wall intervening the two shops was removed and this Court held:

"When a partition wall was constructed between the two shops belonging to co-owners with the result that respondent No. 1 became the owner and landlord of the shop in dispute exclusively and ceased to have any connection with the adjoining shop there can be no manner of doubt that the removal of the petitioner wall which converted two independent shops into one single unit would come within the purview of structural alteration in the building. Likewise, if the partition wall between the two shops were removed there seems to be no doubt that the value of the shop at any rate, to the extent of the value of the wall removed by the tenant apparently diminished. Thus, it was clearly a case where provisions of Section 20(2)(c) of the Act were attracted."

Similar observations came to be made in a case arising out of Section 3(c) of U.P. Temporary Control of Rent and Eviction Act, 1947 in Kishan Lal Vs. Ram Babu, 1970 ALJ 1154 where the Court held:

". . . . . even though by pulling down the partition wall between two shops front of the structure might not have changed, still the structure involved in the case had gone an important change and by demolishing the partition wall the tenant altered two different accommodations and converted them into one accommodation and that amounted to material alteration and the tenant was liable for ejectment on that ground"

On the aforesaid facts, on consideration of various decisions of the Apex Court and this Court, the learned Single Judge of this Court in the case of Umesh Kumar v. Arun Kumar and others (Supra), while holding that the tenant has made material alteration, which resulted in diminishing the value of the property, has observed as follows:

"The relevant consideration to attract Section 20(2)(c) of Act, 1972 is whether the constructions are substantial in nature and alter the form, font and structure of accommodation. The alteration contemplates change of substantial nature affecting the form and character of building. A construction made by digging walls or floor of accommodation making a permanent construction would normally fall within the mischief which has been made a ground for eviction under Section 20(2)(c) of the Act, 1972. Whether the value or utility has diminished or not is not to be seen from the perception of an individual but it has to be seen from general point of view and, in particular, with that of the landlord."

In the case of Om Prakash v. Amar Singh (supra), the Apex Court in paragraph 6 has held as follows:

"6-In determining the question the Court must address itself to the nature, character of the constructions and the extent to which they may changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. The Legislature intended that only those constructions which bring about substantial change in the front and structure of the building should provide a ground for tenants' eviction, it took care to use the word "materially altered the accommodation". The material alternations contemplate change of substantial nature affecting the form and character of the building. Many a time tenants make minor constructions and alternations for the convenient use of the tenanted accommodation. The Legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a Chabutra, Almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alternations for the convenient use of the accommodation do not materially alter the building as in spite of such constructions the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they alter the form, front and structure of the accommodation. It is not possible to give exclusive list of constructions which do not constitute material alterations, as the determination of this question depends on the facts of each case. In S.B. Mathur v. K.P. Gupta, 1961 All LJ 137 construction of temporary wall enclosing verandah and putting up an iron jungala and placing a partition wall, temporary in nature, was held not to constitute material alteration of the accommodation. In Dr. J.G. Gupta v. Bodh Mal, 1968 All LJ 477 a Division Bench of the High Court held that temporary construction made by a tenant in the shape of kitchen and bathroom did not constitute material alterations as the same were temporary and they could be removed without causing any damage to the accommodation. In Sita Ram Sharan v. Johri Mal, 1972 All LJ 317 : (AIR 1972 All 317) a Full Bench held that construction which converted the tenanted premises into double storey structure, materially altered the accommodation. Another Division Bench of the High Court in Baldev Dass v. Ram Khilawan, (1979) 5 All LR 44 held that a partition wall in a shop converting the same into two portions for the convenient use of the same did not amount to material alteration. These decisions were rendered on the facts available on the record of those cases. In deciding this question the Court has to consider whether the constructions have been made with the consent of the landlord and if so, whether those constructions are of such substantial nature which make material alterations in the accommodation. The findings of the Court regarding constructions would be finding of fact, but the question whether the constructions materially alter the accommodation is a mixed question of fact and law, which should be determined on the application of the correct principles."

In the case of G. Arunachalam (Dead) through Lrs. and another v. Thondarperienambi and another, reported in (1992) SCC 723, as per the Commissioners report, the front door formerly of wooden plans has been replaced by rolling shutters, but the wooden frames have not been removed. For fixing the rolling shutter the party has lowered the front portion of the floor by 17 cms. For lowering this floor level the stone steel plate at the top of the basement has been cut down carefully, and refixed at the new level (i.e.) 17 cm. below the original floor level. This does not appear in any way to affect the stability or the value of the building. In the two sides of the shop, two pillars of brick masonry in cement mortar have been provided with steel channel to withstand the reaction of the rolling shutters during operations. It has also been noted that the top of the rolling shutters does not touch the original beam spanning the front opening. The rolling shutter moves in the grooves provided in the new masonry construction at the sides. The top beam of the rolling shutter is only supported on the newly constructed brick pillars. So this also will not impair the stability or value of the building. On inspection, no damage is seen anywhere in the structure. In conclusion, the Commissioner was of the opinion that due to these structural alterations, the value or the stability of the scheduled building have not materially impaired.

On the basis of the Commissioner's report, the Sub Judge has held that no material alteration was made. The High Court, however, reversed the judgement of the Sub Judge. In Appeal, the Apex Court has held that the High Court ought not to have reversed the finding recorded by the Ist Appellate court, which was based on the facts found by the Engineer Commissioner.

In the case of Wariyam Singh v. Baldev Singh (Supra), the question was whether by enclosing the verandah by constructing walls and placing a rolling shutter in front, the value and the utility of the property has been diminished. The Apex Court, while affirming the view taken by the High Court wherein the claim of the landlord for eviction of the tenant has been rejected, has observed that in the case of a shop, particularly in a business locality, the area of the shop gets increased by the verandah getting enclosed. This would increase the value and utility of the shop. In the absence of any proof of material impairment in value or utility, the High Court was right in concluding that no decree for eviction could be passed.

In a case where Act No.13 of 1972 applies, Section 20 provides that a suit for eviction can be filed on the grounds mentioned therein. The grounds on which, the suit for eviction can be field are mentioned in sub-Section (2) of Section 20, which reads as follows:

"(2). A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely,

(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:

Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the Prescribed Authority under the Indian Soldiers (Litigation) Act, 1925 (Act No.IV of 1925), has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words "four months" in this clause shall be deemed to have been substituted by the words "one year";

(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the building;

(c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as it likely to diminish its value or utility or to disfigure it;

(d) that the tenant has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with such use, or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes;

(e) that the tenant has sub-let, in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building;

(f) that the tenant has renounced his character as such or denied the title of the landlord and the letter has not waived his right or re-entry or condoned the conduct of the tenant;

(g) that the tenant was allowed to occupy the building as part of his contract of employment under the landlord and his employment has ceased."

The contention of the landlord is that his case falls under Clause (c). Submission is that the respondent/tenant has made construction and structural alteration in the shop in dispute, which has diminished its value, utility and disfigured it.

There is no dispute that the shop in dispute has been extended by raising the wall and putting shutter on the front of the extended portion. Thus, the structural alteration has been made. The only question is whether it diminished the value or utility or dis-figure it. I am of the view that such construction has diminished value, utility and disfigure it. The extension of the shop by constructing the wall and occupying the 'chabutara' is not legally permissible in accordance to the Municipal bye-laws. This is an unauthorised construction. Such construction can be demolished by the authority concerned at any time, which may result the damage to the original shop, resulting diminishing the value. By raising construction it also dis-figure the original shop. Merely because neighbouring tenants have also raised the construction and no step for their eviction has been made, may not be a ground to reject the suit for ejectment.

The Apex Court, in the case of Vipin Kumar v. Roshan Lal Anand an others (supra), has held that to attract Section 20(2)(c) of the Act, it has to be established that the tenant has committed such acts of construction or structural alteration as are likely to diminish the quality, strength or value of building or rented land to such an extent that intrinsic worth or fitness of the building or rented land has considerably affected its use for some desirable practical purpose. The decrease or deterioration, in other words, the impairment of the worth and usefulness or the value and utility of the building or rented land has to be judged and determined from the point of view of landlord and not of tenant or any one else.

While taking the aforesaid view, the Apex Court has relied upon its earlier decision in the case of Gurbachan Singh & Anr. Vs. Shivalak Rubber Industries & Ors.(supra). In the said case, the tenant had removed the full size door of one shop and merged the shop into open part of the verandah. All these activities were held to be a structural alteration, impairing material value and utility of the building. The Apex Court observed that the construction, addition and alteration of the five shops and verandah in front of the said shops of a permanent nature, will certainly amount to acts has have been or likely to have impaired materially the value or the utility of the building/premises let out to the tenants.

It is explicit that the Legislature has protected the land-lord and put the restriction on the tenant from raising construction or making structural alteration without the permission and consent of the land-lord so that the building/premises let out to the tenant shall remain intact as such in the form in which it has been let out without any change and in case if the tenant violates such condition, it gives a right to the land-lord to get the premises vacated.

In view of the foregoing discussions, I am of the view that the land-lord is able to make out a case under Section 20(2)(c) of the Act and is entitled to get the premises vacated.

In the result, the writ petition is allowed with the cost of Rs.5,000/= (Rupees Five thousand only). The order of the Revisional Authority, dated 2nd September, 2009 is set aside and the order of the Judge Small Causes Court, Allahabad, dated 18th November, 1998 is affirmed.

The tenant is allowed three months' time to vacate the premises, provided, tenant gives an undertaking to this effect before the court below within two weeks from today.

Order Date :- 26.8.2013

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